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United States v. Gonzalez-Perez

United States Court of Appeals, First Circuit

January 23, 2015

UNITED STATES OF AMERICA, Appellee,
v.
DAVID GONZÁLEZ-PÉREZ, Defendant, Appellant

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, U.S. District Judge.

Tina Schneider, for appellant.

María A. Domínguez-Victoriano, First Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Jacqueline D. Novas-Debien, Assistant United States Attorney, were on brief, for appellee.

Before Lynch, Chief Judge, Torruella and Ripple,[*] Circuit Judges.

OPINION

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TORRUELLA, Circuit Judge.

Defendant David González-Pérez (" González" ), a former officer with the Puerto Rico Police Department (" PRPD" ), was charged with drug and gun charges for his participation in fifteen drug transactions that were part of an FBI sting operation aimed at corrupt police officers. After an eleven day trial, the jury acquitted González of all charges arising out of the first drug transaction, as well as all firearm charges, but convicted him on all other counts. González now appeals, arguing that the district court erred by declining to give jury instructions on entrapment, duress, and impeachment by prior conviction, and by failing to prevent other trial errors at closing arguments. Finding no reversible error, we affirm.

I. Facts

Aiming to combat corruption in the PRPD, in 2008 the Federal Bureau of Investigation (" FBI" ) launched a sting operation called " Operation Guard Shack," which has been described in detail in other cases arising out of the same operation. See United States v. Díaz-Castro, 752 F.3d 101 (1st Cir. 2014); United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014); United States v. Díaz-Maldonado, 727 F.3d 130 (1st Cir. 2013). The FBI hired confidential informants to invite police officers, suspected to be corrupt, to provide armed protection for drug transactions staged and secretly recorded by the FBI. Police officers providing armed protection for these drug transactions were usually paid between $2,000 and $2,500 per transaction.

The FBI's main confidential informant in this case was Héctor Cotto-Rivera (" Cotto" ), a former PRPD officer. González and Cotto had met and worked together

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at the PRPD. In early 2008, while still working as police officers with the PRPD, González and Cotto were charged at the state level for taking a bribe from an arrestee to fix his case.[1] As a result of these criminal charges, they were both initially suspended and then terminated from their employment with the PRPD. Both Cotto and González pled guilty to omission in the fulfillment of their duties.

Cotto also faced federal charges for taking bribes. Seeking leniency on the federal charges, Cotto became a confidential informant for the FBI. He portrayed himself as a drug dealer and was tasked with identifying corrupt police officers. Cotto testified at trial that, since he already knew that González was a corrupt officer, he approached González and asked him to sell Cotto drugs. González, however, did not do so. Cotto testified that, on other occasions, González approached Cotto asking him for work in his purported drug businesses, but that Cotto did not offer him any job, supposedly because at the time they still had the state bribery charges pending.

Sometime later, Cotto became involved in Operation Guard Shack, where he played the role of the right-hand man for a drug trafficker and was tasked with identifying and inviting corrupt police offers to provide armed protection for the drug transactions. The plan was to require each police officer recruited to, in turn, recruit another corrupt police officer, so that the FBI could identify additional corrupt officers. Cotto approached police officers whom he already thought were corrupt, including González.

On or about September 9, 2009, Cotto telephoned González to tell him for the first time about an armed security job that he had available for the following day. Cotto told González that the job would pay $2,000. González, who was aware that the work being offered was not legal,[2] responded: " Okay. If you're gonna pay me, yes. If you're gonna take me for a fool, no." After Cotto reassured him that the job indeed paid $2,000, González enlisted for the job. Details of the transaction were not discussed over the phone, because González was reluctant to do so.[3] Cotto did, however, tell González that he needed to wear a bulletproof vest, take a firearm with him, and bring another police officer to also provide armed security. González agreed to wearing a bulletproof vest but said he was unable to get a firearm or enlist someone else for the job. Cotto told González not to worry about the firearm, and reached out to a correction officer with whom he was acquainted because a third person who could be trusted was allegedly needed for the security detail. Cotto and González then discussed the details about how González was to get to the apartment where the security would be provided.

As planned, on September 10, 2009, González met with Cotto at the Plaza Las Américas shopping mall, where they were

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joined by Christian Díaz-Maldonado (" Díaz" ), the correction officer recruited by Cotto.[4] They all drove together to an apartment in Isla Verde, Puerto Rico, where the security would be provided. This apartment had concealed audio and recording devices.

While waiting for the drug buyer at the apartment, González drank beer and casually chatted with Cotto, Díaz, and the purported drug trafficker, Eddie.[5] After the drug buyer arrived, González frisked the buyer for concealed weapons and recording devices. Eddie then brought out a piece of luggage and removed bricks of fake cocaine from it. The buyer examined the bricks.

Upon the conclusion of the drug transaction, González and Díaz escorted the buyer to the exit and returned to Cotto, who then paid $2,000 to each González and Díaz. González took the money without hesitation, counted it, and placed it in his pocket. As he was getting ready to leave the apartment, González told Eddie, " we are at your service."

After the September 10 transaction, González participated in fourteen additional drug transactions. He was paid either $2,000 or $2,500 for his participation in each of them. For these subsequent transactions, González carried firearms. He also recruited additional people to provide armed security for these transactions, including his brother, his sister-in-law, his neighbor, and his barber. These subsequent transactions had the same modus operandi as the one that took place on September 10, 2009. Most of these transactions were preceded by recorded telephone conversations between González and Cotto, during which they discussed whether González had recruited others to assist in the transactions, their names, and whether González had explained to those recruited what was expected of them during the transactions. González manifested his gratitude for being offered these additional work opportunities, reiterated that he was at Eddie's service and indicated his willingness to engage in other illegal activities, such as buying illegal firearms and coordinating drug smuggling ventures for Eddie. González's last transaction took place on March 16, 2010. He was arrested in September 2010.

In August 2011, González was tried alone before a jury on sixty-three counts contained in a second superseding indictment. The charges included multiple counts of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § § 841(a)(1), (b)(1)(A)(ii)(II), 846; aiding and abetting an attempt to possess with intent to distribute cocaine, 21 U.S.C. § § 841(a)(1), (b)(1)(A)(ii)(II), 846; 18 U.S.C. § 2; possession of a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A); and aiding and abetting possession of a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A); id. § 2.

At trial, González admitted his participation in the drug transactions, but claimed that he was carrying blank firearms. He also claimed that when he agreed to participate in the initial transaction, he did not know that it would involve drugs and that it was not until the bricks of cocaine were pulled out of the luggage in the middle of the first transaction that he realized that he was in a drug transaction.

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González further claimed that Cotto took advantage of his financial situation, and that he continued participating in the transactions out of fear for his safety and that of his family. Accordingly, González requested jury instructions on entrapment and duress. He also requested jury instructions on ...


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